Benson v. Iowa Bake-Rite Co.
| Decision Date | 16 October 1928 |
| Docket Number | 39266 |
| Citation | 221 N.W. 464,207 Iowa 410 |
| Parties | BEN S. BENSON et al., Appellees, v. IOWA BAKE-RITE COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 23, 1929.
Appeal from Wapello District Court.--E. S. WELLS, Judge.
An action to recover rent under a lease on a store building located in the city of Ottumwa. From a directed verdict in favor of the plaintiffs, the defendant appeals.
Reversed.
Thomas J. Bray, for appellant.
McNett & McNett, for appellees.
Mary T Leighton was the owner of the premises in controversy, and, she being deceased before the commencement of this suit, plaintiffs sue as her executors. Defendant is a corporation, organized under the laws of the state of Iowa.
On July 31, 1922, Mary T. Leighton and the defendant, the Iowa Bake-Rite Company, entered into a lease for the store room and basement situated at No. 104 South Market Street, in the city of Ottumwa, Iowa, for a term of three years, commencing August 1, 1922, at a monthly rental of $ 165, to be paid monthly in advance. The defendant moved into said building, and occupied the same until the 13th day of July, 1924, when a fire occurred in said leased premises, which rendered the same untenantable, and defendant moved its banking machinery and personal property into another building. Defendant paid the rent for the month of July, and the plaintiffs sue to recover for the balance of the term under the lease.
Five defenses are made:
1. That the fire made the building untenantable, and the termination of the lease because of the fire.
2. That because of the fire the building became untenantable, and the owner would not agree to reconstruct the same, and that appellant terminated and surrendered the lease, and thereby was released from liability for the payment of rent thereafter.
3. That the leased premises were not restored to a tenantable condition at any time during the balance of the term thereof, which expired August 1, 1925.
4. That it was the duty of the appellees, after the fire, to reconstruct and repair the leased premises, and also the duty of appellees, after appellant terminated the lease, to use reasonable diligence to relet the property, which they refused and neglected to do.
5. The affirmative defense of estoppel.
At the close of all of the testimony, each party made a motion for a directed verdict. Defendant's motion was overruled, and plaintiff's motion sustained. A verdict was returned, and judgment entered for $ 1,815 with interest.
The defendant corporation was engaged in operating bakeries in several cities within this state, and in the city of Ottumwa operated both a wholesale and retail business, and was so engaged at the time of the fire in controversy. The premises rented under this lease were only a part of the building, there being at least one store room, and possibly more, above the same, as a part of the same building, which was flanked on either side by a similar building, one of the adjoining buildings being occupied for restaurant purposes. The fire occurred on July 13, 1924, and originated in a partition between the restaurant and appellant's store room. It resulted in the burning of a part of the joists in the floor between this room and the basement, and the destroying of the partition wall between these two rooms for a distance of about 20 feet. The windows in the rear of the Bake-Rite room were broken by the heat or by the firemen, and the door and transom were scorched so that they had to be replaced. The painting and decorating were destroyed, a large amount of water being poured into the room by the fire department, and the walls and ceiling were also damaged from the use of the water. There seems to be no dispute in the testimony that the room occupied by the Bake-Rite Company was untenantable immediately after the fire.
Ben S. Benson, the agent of appellees, testified that the ovens used by the Bake-Rite Company were put out of operation by the fire, and that he knew that the fire made their room untenantable, not only from the fire itself, but from the smoke and water, and that the front room was entirely water-soaked and damaged by the fire. Immediately after the fire, the representatives of the Bake-Rite Company went to Benson, who had charge of the renting of this building, and wanted to know whether he was going to repair the room as quickly as possible, and he refused to give them a satisfactory answer to this question. This occurred on the Tuesday following the fire, which was on Sunday. Benson admits that Sunstrum (one of the officers of the defendant company) told him that he considered that the lease would terminate, and that he (Benson) would receive written notice of the termination of the lease because of the fire, which notice was subsequently given. Benson also admits that, on July 30th, the local manager of the Bake-Rite Company tendered him the keys to the leased property, and that he accepted them, and never tendered them back to any officer of the Bake-Rite Company.
On July 15th, in pursuance of the oral conversation between the officers of the Bake-Rite Company and Benson, a letter was written, in which inclosure was made of a check for $ 165 for the rent for July, the letter proceeding:
"This letter will give you official notice that we consider our lease terminated by reason of the recent fire, and in accordance with the terms of said lease; and which letter verifies the verbal notice given you today."
On July 18th, Mary T. Leighton, through her agent, acknowledged receipt of the above letter, and, with reference to the termination of the lease, the letter proceeds:
On July 26th, an attorney for the Bake-Rite Company indited a letter to Benson, as agent for appellees, calling attention to the terms of the lease, and reciting that the same was terminated, and that the company considered its liability for the payment of rent under the terms of the lease at an end.
Some further correspondence passed between these parties along similar lines. The Bake-Rite Company insisted that they had a right under the lease, which they had exercised in terminating the same; the other parties claiming that no such right existed, and that said lease had not been terminated. Both parties had insurance on this building; and, of necessity, neither could do anything until adjustments were made by the insurance companies, which adjustments were made about the 28th day of July, after which the appellees promptly contracted with builders to repair the damages done to the building by the fire. This damage was all repaired, except the painting, papering, and decorating of the room, which was never done. At this point, the appellant insists that this work was necessary, in order to make the room again tenantable for its business purposes. Appellees insist that the building was tenantable without the painting, papering, and decorating. This question becomes important, by reason of certain provisions of the lease, reading in part as follows:
It is insisted by appellant that, under the above provision of the lease,--it being admitted that the building was untenantable immediately after the fire,--it thus continued until the end of the lease, and therefore that it is not liable for the rent after the time for which it had already paid. The question therefore was (it being assumed that the repairs had been made on the building), Was it necessarily a part thereof, to make the building tenantable, that the room should be painted, papered, and decorated? It seems to us that this is a question of fact, and one which is disputed in the record. This being so, it was a question for the jury to answer, and not one for the court.
The next question raised is as to the force and effect of the...
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